| Benaquista v Burke |
| 2010 NY Slip Op 04896 [74 AD3d 1514] |
| June 10, 2010 |
| Appellate Division, Third Department |
| A. Paul Benaquista, Appellant, v Walter T. Burke,Respondent. |
—[*1] Corrigan, McCoy & Bush, P.L.L.C., Rensselaer (Scott W. Bush of counsel), forrespondent.
Stein, J. Appeal from an order of the Supreme Court (Kramer, J.), entered March 20, 2009 inSchenectady County, which, among other things, granted defendant's cross motion for summaryjudgment dismissing the complaint.
Plaintiff seeks an award of damages in this action for, among other things, legal malpractice.After joinder of issue, plaintiff moved to compel depositions and defendant cross-moved forsummary judgment dismissing the complaint. Supreme Court granted defendant's cross motion.On plaintiff's appeal,[FN1]we affirm.
Plaintiff and his mother co-owned two corporations and defendant represented thecorporations in various matters. In December 2002, plaintiff was removed as an officer anddirector of one of the corporations. Shortly thereafter, his mother and the corporationscommenced an action against him for, among other things, mismanagement andmisappropriation [*2]of corporate funds. Defendant was theattorney of record for plaintiff's mother and the corporations in that action. Plaintiff thencommenced this action alleging, as pertinent here, that defendant committed legal malpractice. Inthe complaint, plaintiff alleged that he had previously sought legal advice from defendantconcerning business issues between plaintiff and his mother and, in doing so, he had discussedconfidential legal and personal matters with defendant. Plaintiff asserted that defendant thenused such confidential information against him in commencing the action on behalf of hismother and the corporations, as a result of which he had suffered damages.
In order to recover for legal malpractice, plaintiff must demonstrate that defendant " 'failedto exercise the reasonable skill and knowledge commonly possessed by a member of the legalprofession' " (Bixby v Somerville,62 AD3d 1137, 1139 [2009], quoting Arnav Indus., Inc. Retirement Trust v Brown,Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303-304 [2001]) and that plaintiff wasdamaged as a result of such negligence (see Bixby v Somerville, 62 AD3d at 1139).Nonetheless, as the proponent of a motion for summary judgment, defendant had the initialburden of establishing his prima facie entitlement to judgment as a matter of law (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Defendant met thisburden by proffering defendant's sworn affidavit, alleging that his firm had represented plaintiff'smother and the corporations prior to his representation of plaintiff—which consisted onlyof the incorporation of a business owned by plaintiff—and that no conflict of interestexisted. In addition, defendant provided plaintiff's bill of particulars and asserts that it fails tospecifically identify any personal or confidential information used by defendant against plaintiffor any damages suffered by plaintiff.[FN2]Thus, the burden shifted to plaintiff to raise a question of fact requiring a trial (see CPLR3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs.,46 NY2d 1065, 1067-1068 [1979]).
Plaintiff's only opposition to defendant's cross motion was an attorney affirmation andvarious documents which, as relevant to this appeal, consisted primarily of billing records.Inasmuch as plaintiff failed to proffer any sworn allegations of an individual with personalknowledge of the relevant facts and the documents submitted were not in admissible form, hisopposition was insufficient to sustain his burden of raising a triable issue of fact to defeatdefendant's entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68NY2d at 327; Zuckerman v City of New York, 49 NY2d at 562; Bixby vSomerville, 62 AD3d at 1139; Polyglycoat Ctr. of Conn. v Arace's Ford, 126 AD2d844, 845 [1987]). Accordingly, Supreme Court properly granted defendant's cross motion forsummary judgment dismissing the complaint.
Peters, J.P., Rose, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: Plaintiff's argument on appealrelates only to the third cause of action in the complaint. Thus, any appeal relating to the first andsecond causes of action has been abandoned, as confirmed by counsel for plaintiff at oralargument (see Yankee Lake Preserv.Assn., Inc. v Stein, 68 AD3d 1603, 1604 n 4 [2009]).
Footnote 2: Although we note that the billof particulars does contain allegations as to damages, even if such allegations were legallysufficient, the bill of particulars is verified by plaintiff's attorney and is not sworn to by plaintiff.